Maryland Department of Human Resources, DAB No. 896 (1987)


Ì .ÌÌ..Ì  DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  Maryland Department of Human Resources

Docket No. 87©103
Decision No. 896

DATE: September 3, 1987

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The Maryland Department of Human Resources (State) appealed afinal
decision of the Family Support Administration (Agency)disallowing
$38,668 in federal financial participation (FFP)claimed by the State
under Title IV©A of the Social Security Act(Aid to Families with
Dependent Children).  The disallowancerepresents the difference between
reimbursement at 75 percent FFPclaimed by the State for training
expenses, rather than the 50percent level that the Agency contended was
appropriate.  Thetraining classes were conducted before October 1, 1981,
theeffective date of section 2319 of the Omnibus BudgetReconciliation
Act (OBRA), Pub. L. 97©35, which reduced FFP fortraining to 50%, but
were not paid for until after that date.

As we discuss below, we find that the statute an# the regulationsclearly
support the disallowance and, consequently, we uphold it.

”Background•

The facts in this case are undisputed.  The State contracted withfour
public educational institutions to conduct training for itsAFDC
employees at a time when the rate of FFP for such activitieswas 75
percent.  The training was conducted sometime beforeOctober 1, 1981.
Th# State has asserted that it was billed forthe training and paid those
bills #in the ordinary course" afterSeptember 30, 1981.  Appeal brief at
5. ”1•/ It filed a claim forreimbursement for training expenses at 75
percent FFP.  TheAgency held that the applicable rate was 50 percent,
because theexpenditures at issue had been made during the quarter
endingDecember 31, 1981, wh#n the bills were paid.  Since OBRA
section2319 stated that it ”                    •

 The State did not specify whether it received any of thebills
 prior to September 30, 1981, since the parties relied oneither
 the date the services were rendered (State) or the datepayment
 was made (Agency).  As noted below, the State failed toestablish
 that the costs were allocated in accordance withapplicable
 regulations to a quarter prior to that ending onDecember 31,
 1981.

applied to "expenditures made after September 30, 1981," andAgency
regulations at 45 CFR 95.13(d) provide that an expenditureis made when
the provider is paid or in the quarter when thecosts were allocated in
accordance with the applicableÜj

In its appeal brief, the State contended that the Agency'sinterpretation
of the statute was not supported by its languageor legislative history
and, moreover, was contrary to the wellªestablished rule that statutes
affecting substantial rights andliabilities are presumed to have only
prospective effect.  TheState claimed that since it had the expectation
at the time thatit contracted for the training that it would be
reimbursed at the75% FFP rate, it had a vested right to that rate.  In
support ofits position that retrospective application of a statute
isillegal when a party is unduly burdened, the State cited severalcourt
cases and Board decisions.

In addition, the State contended that 45 CFR 95.13(d) does notapply to
the facts of this case because that provision appliesonly to payments
made to a private agency or individual, and allof the educational
institutions which provided the AFDC trainingwere indisputably public
institutions.  The State maintained thatthese entities were included in
the definition of State agencyfound at 45 CFR 95.4.  The State also
contended that Agency andBoard precedent supported the State's position
that anexpenditure was made when services were rendered, not when
thebill was paid.

”#nalysis•

The question in this case is not whether FFP is available for theState's
training costs, but rather what percentage of the costscan be
reimbursed.  The precise language used by Congress in OBRAsection 2319
is:  "The repeals made by this section shall applyto #####”ditures•
”made• ”after• ”September• ”30•, ”1981•." (Emphas#s added.)Prior to the
passage of OBRA, AFDC training costs werereimbursable at 75% under
section 403(a)(3)(A) of the Act.  Withthe passage of OBRA federal
participation was reduced to the 50%provided generally for
administrative expenses under section403(a)(3)(C).  Since the amendment
was in the nature of a repeal,the Agency was without authority to pay
more than that reducedrate for expenditures made after the statute's
effective date.

Thus, the central issue in this case is whether an expenditure ismade on
the date of payment or when services are rendered.  TheState contended
that the statutory language is unclear because itdid not explicitly
state that it applied to training servicesrendered before September 30,
1981, and the State spentconsiderable energy arguing that the Agency's
interpreta¬tionimposed an illegal retroactive penalty.  We find that the
statuteis not retrospective in effect and that, moreover, the
term"expenditure" had a clearly defined regulatory meaning in thecontext
of the programs affected by the statute when it wasÜj

A.  The Statute Is Not Retrospective in Effect

The State contended that the Agency's interpretation of thestatute
imposed an illegal retroactive penalty.  It argued thatno justification
existed for departing "from the well©establishedrule of statutory
interpretation that statutes affectingsubstantial rights and liabilities
are presumed to have onlyprospective effect." State brief, p. 5.  The
State cited insupport two recent Supreme Court cases, ”Bennett v. New
Jersey•,470 U.S. 632 (1985), and ”United States v. •########©©©Bank,
459U.S. 70 (1982), as well as ”Coe v. Secretary of HEW•, 502 F.2d
1337(4th Cir. 1974).

None of the cases cited by the State are relevant here since theissue
before us is not about the general rule for applyinglegislation only
prospectively, but whether the rule applies atall in the case before us.
The statute here does not evenpurport to be retrospective in
application.  The statute wasenacted on August 13, 1981, and applied
only to expendituresafter September 30 of that year.  It therefore
applied onlyprospectively, ”i.e.•, to expenditures made after its
enactment. Only if it attempted to apply to expenditures made before
itsenactment would it be retrospective in effect. ”2•/

This was pointed out by the Board in New York State Department ofSocial
Services, No. 521 (1984), which was also relied upon bythe State.  The
Board there said that the timely claims filingstatute, which was not
retro¬active in effect, was entirelydifferent from "a law which when
enacted has the effect ofbarring any claim for expenditures before its
passage." ”New• ”York•,p. 12.  So here the statute does not preclude 75%
FFP for any ”                    •

2/ The State did not offer any evidence to show that it #ould nothave
paid for the services before October 1.

expenditures made before its passage.  The question is whetherthe
expenditure was made before or after the effective date ofthe statute,
or stated simply, the only question is when theexpenditure was made.
This is not dependent on the language ofthe statute, which is perfectly
clear on its face.

Moreover, if we were to accept the State's argument that it had avested
right to reimbursement at 75%, then the timing ofstatutory changes in
FFP levels would be controlled by Statecontracts for services; the
Agency would be denied "fixed,predictable standards for determining if
expenditures are proper"that the Supreme Court cited as an important
policy considerationin ”Bennett•, 470 U.S. at 637, both in cases where
the level wasincreased as well as decreased.  As the Agency noted in
itsbrief, the State may always protect itself from funding cutbacksby
using contractual clauses to make its agreements contingentÜj

B.Ì .ÌThe Regulations Define When the State's Expenditure OccurredÞ.JÞ

On January 15, 1981, well before the passage of OBRA, the
Agencypromulgated the regulations that include the provision that
theAgency applied here, 45 CFR 95.13(d).  ”See• 46 Fed. Reg. 3529(1981).
_3/ That section states:

Ì .ÌWe consider a State agency's expenditure for administrationor
training under title . . . IV©A . . . to have been madein the quarter
payment was made by a State agency ”to aprivate agency or• ”individual•;
or in the quarter to which thecosts were allocated in accordance with
the regulations foreach program.  (emphasis added).Þ.JÞ ”

3/ Subpart A of 45 CFR Part 95, entitled "Time Limits for #tatesto File
Claims," was adopted to implement section 1132 of theAct, which was
added in 1980 by section 306 of Pub. L. 96©272. This regulation was not
promulgated for the purpose ofimplementing the statute before us.  We
believe it is pertinent,however, because it gives a definition of when
an expenditure ismade under the various public assistance programs.
Even withoutthis provision, the ordinary everyday meaning of the
word"expend" is to pay out.  ”See• Hawaii Department of SocialServices,
No. 779 (1986); ”see• ”also• Florida Department of Healthand
Rehabilitative Services, No. 884 (1987) (citing ”Hawaii•).

The State argued that this provision was inapplicable in thiscase
because the payments were made to public educationalinstitutions rather
than a private agency or individual, and thatthese institutions came
under the definition of "State agency" atsection 95.4 of these
regulations.  That section states:

Ì .Ì”State• ”agency• for the purposes of expenditures for
financialassistance under title IV©A . . . means any agency
ororganization of the State or local government which isauthorized to
incur matchable expenses. . . 45 CFR 95.4.Þ.JÞ

The Agency contended that the definition of "State agency" insection
95.4 was inapplicable here because the expendituresinvolved were for
training, not financial assistance under titleIV©A, and because the
schools involved acted as private entitieswho contracted to provide
training for the State.  The Statecountered that

Ì .Ì[T]he Agency cannot seriously argue that reimbursableexpenses under
Title IV©A are limited to claims forproviding financial assistance . . .
nor does the Agencycite any authority for its argument that those
publicinstitutions were not "authorized to incur matchableexpenses"
under section 95.4." Reply brief at 3.Þ.JÞ Üj

We agree with the Agency, however, that these schools were actingas
private agencies.  The Agency's contention concerning theapplicability
of the section 95.4 definition of "State agency"was not that Title IV©A
precluded reimbursement for trainingexpenses, but rather that "financial
assistance under title IV©A"means monetary assistance provided to an
individual, notassistance provided to a State agency for administration
ortraining needs.  Indeed, FFP for financial assistance is governedby a
different section of the AFDC regulations, 45 CFR 234.120,from that
covering FFP for training expenditures, 45 CFR 235.64. On this basis
alone it is clear that the definition of "Stateagency" does not preclude
the application of this definition ofexpenditure.

Furthermore, we agree with the Agency that the record in thiscase
indicated that these educational institutions did not fitthe section
95.4 definition of State agency.  The State arguedthat the Agency had
not cited any authority for its argument thatthese public institutions
were not "authorized to incur matchableexpenses." The State did not
supply any evidence apart from itsown unsupported statement that the
institutions were soauthorized.  Thus, we agree with the Agency that the
record inthis case indicates that these schools acted as private
entitiesin contracting with the State to provide training services;
the"matchable expenses" created by the training activities wereincurred
by the State agency under its contract with theseinstitutions rather
than by the institutions on their ownauthority.

In addition, the State argued that the Agency's position here(that the
State incurred expenditures for services by thesepublic institutions
only when it paid for them) was inconsistentwith its previous arguments
to the Board "that publicly operatedÜj

Leaving aside the fact that the Agency's argument was never ruledon #/,
the cited brief does not say what the ”                    •

4/ The Board found it unnecessary to reach this issue in #tsDecision.
”See• Colorado Department of Social Services, No. 602(1984).

State says it does.  The Agency sums up its argument in No. 83ª217 on p.
6 of its brief, concluding that for publicly ownedfacilities, "the
operative date is the date that the ”facility•made the expenditure,"
(emphasis in original) rather than thedate the State Medicaid agency
reimbursed the facility.  Herethere is no contention that the
State©owned facilities (theschools) made ####n#####”es• at any time.
The only expenditu#es atissue are t#ose when the State paid the schools,
which was afterSeptember 30.

Based on the foregoing, we conclude that the Agency was correctin
applying the regulation specifying when an expenditure takesplace to the
transactions in the present case. 5/ That regulationwas in place on
August 13, 1981, when O#RA was passed.

”Conclusion•

Based on the foregoing, the Agency's disallowance is upheld.

 


          ”
          •
     Donald ©#. Garrett

 

Ì .ÌÌ..ÌÌ..ÌÌ..ÌÌ.#Ì”  ##### /               •  Norval D.#;ohn)
SettleÞ#JÞ ”      • ”. ##  •

       ”    #,#..
       #.######©     •

     Presiding Board Membe###


 ”                    • Üj .Ì5/ The State also cited two Board
decisions in support of#ts contention that its expenditure took place
prior toOctober 1, 1981:  Michigan Department of Social Services,No. 352
(1982), and Economic Opportunity PlanningAssociation of Greater Toledo,
No. 579 (1984).  Although weindicated that in the unusual circumstances
in both casesfunds need not necessarily be paid out for an expenditure
totake place, in neither case was the ”date• of the
expenditurediscussed.Þ.JÞ